by Ken Blackwell and Ken Klukowski 
The Supreme Court yesterday restricted how far employers may go in considering race in hiring and promotion decisions, a ruling that puts workplaces across the nation on notice that efforts to combat potential discrimination against one group can amount to actual discrimination against another.
The court ruled for white firefighters in New Haven, Conn., who said city officials violated their rights when it threw out the results of a promotions test on which few minorities scored well. The case drew outsize attention because President Obama's nominee for the high court, Judge Sonia Sotomayor, had been part of a unanimous panel on the U.S. Court of Appeals for the 2nd Circuit that endorsed a lower-court ruling upholding New Haven's decision.
The case was a victory for conservative groups and the firefighters, who said the city's resolution had amounted to denying promotions based on skin color. The court's conservatives prevailed in a decision that said employers needed a "strong basis in evidence" that a test is deficient before discarding the results, rather than just "raw racial statistics" that may indicate a subtle discrimination.
"No individual should face workplace discrimination based on race," Justice Anthony M. Kennedy wrote for the five-member majority.
Civil rights groups said the decision would create a hurdle for employers, especially in the public sector, seeking to diversify their workforces without violating the law.
The case has been used by Sotomayor critics as evidence that she allowed her personal preferences to influence her rulings, while her supporters said the decision was a straightforward application of court precedents.
In the end, neither side conceded any ground over what yesterday's ruling indicated about Sotomayor's fitness for the high court.
Her supporters noted the closeness of the vote and pointed to the opinion's wording that yesterday's decision "clarifies" how the courts and employers should interpret Title VII of the Civil Rights Act. That indicates Sotomayor and the other judges on the appellate panel were simply following precedent in the 2008 decision, her backers said. "She doesn't legislate from the bench," said White House press secretary Robert Gibbs.
Those who oppose Sotomayor contrasted the court's 89 pages of opinions, concurrences and dissents with the 134-word summary judgment from Sotomayor and the other judges on the panel. Sen. John Cornyn (R-Tex.), a member of the Senate Judiciary Committee, called the Supreme Court's decision a "victory for evenhanded application of the law" and said that "all nine justices were critical of the trial court opinion that Judge Sotomayor endorsed," an assertion the White House rejected.
Although both sides searched for references that might be used for and against Sotomayor, the ruling was more revealing for what it said about a court still closely divided about government policies involving race and diversity.
The decision tried to find the spot between what can be seen as competing provisions of Title VII -- which says that individuals may not be treated differently because of their race, religion or sex, but also that seemingly neutral testing requirements can be discriminatory if they have a disparate impact on members of one group.
New Haven officials said they found themselves in a difficult position when the test results showed that no African Americans and only two Hispanics would have been eligible for promotion to the ranks of lieutenant and captain. City officials said they feared a lawsuit.
Kennedy said that was not a good enough reason to dismiss the test results. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," he wrote.
Kennedy said that New Haven's test -- 60 percent of the firefighters' scores were based on a written test and 40 percent on interviews -- properly evaluated what candidates would need to know to perform their jobs, and that it was equally applied to candidates of all races and ethnic backgrounds.
"The process was open and fair," he said. "The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city's refusal to certify the results."
Kennedy wrote for Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
Justice Ruth Bader Ginsburg, reading her dissent from the bench for emphasis, said the firefighters who brought the suit "understandably attract the court's empathy." But she said the majority decision undermines Title VII.
"Congress and, until the decision just announced, this court regarded Title VII's dual prescriptions on intentional discrimination and disparate impact as complementary," Ginsburg said. "Standing on equal footing, both provisions aim to end workplace discrimination and promote genuinely equal opportunity."
Both sides delved deep into the record of New Haven's decision and found contradictory lessons. Ginsburg said the city's decision must be seen in context: "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow," she said.
Writing for liberals John Paul Stevens, Stephen G. Breyer and, on his last day on the bench, retiring Justice David H. Souter, Ginsburg said New Haven had "ample cause to believe its selection process was flawed and not justified by business necessity."
But Alito, in a concurring opinion with the majority, said the city's decision was driven more by racial politics than any legitimate concerns about the test. He said the plaintiffs do not demand "sympathy" but "evenhanded enforcement of the law -- of Title VII's prohibition against discrimination based on race."
Yesterday's opinion does not forbid employers from factoring in disparate impact or considering race in the makeup of their workforces, and it avoided questions about whether parts of the Civil Rights Act violate constitutional protections of equal protection.
But Scalia wrote: "The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how -- and on what terms -- to make peace between them."
The case is Ricci v. DeStefano.
In a setback for religious liberty and freedom of association on campus, the Supreme Court of the United States today declined to hear an appeal of the United States Court of Appeals for the Ninth Circuit's ruling in Truth v. Kent. The Supreme Court's decision not to hear the appeal means that the Ninth Circuit's deeply flawed ruling in Truth will stand. As a result, the rights of student groups at public campuses in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Washington to define themselves in accordance with their shared beliefs may be threatened.
FIRE submitted a friend-of-the-court brief in late April urging the Court to hear the appeal. In our press release announcing the filing of our brief, we described the facts of the case:
The controversy surrounding Truth began in the fall of 2001, when two students at Kentridge High School first applied for official recognition of Truth from the Associated Student Body Council (ASB). Despite consulting with the school's counsel and principal, the ASB did not take any action on the application for the entire 2001-2002 school year. In January 2003, Truth submitted a second application, stating that while general membership would be open for all Kentridge students, voting membership and leadership positions would only be open to students who shared Truth's faith-based beliefs. This application was also denied, prompting Truth to file suit in federal district court, alleging a violation of the group's right to free speech and expressive association, among other claims. A third application submitted in April 2003 was also denied.
The ASB cited the group's name, mission, and the fact that it was "segregating" as reasons for the rejections, despite the fact that each of the 30 student groups recognized by the school maintain "Membership Criteria" requiring that students be, for example, committed to certain causes (EarthCorps) or even of a specific sex (the Men's Honor Club and the Girl's Honor Club). Both the district court and the Ninth Circuit found against Truth, holding that its First Amendment right to freedom of expressive association had not been violated.
Because Truth tried to ensure that its membership consisted of students who shared its core beliefs, both the ASB and the school district refused to grant the group recognition, arguing that Truth was in violation of the district's nondiscrimination policy. And in finding that this refusal did not violate Truth's First Amendment rights, the Ninth Circuit essentially held that the First Amendment right to freedom of association somehow does not apply when the association in question involves high school students seeking to form a group around their shared religious beliefs. But this holding completely misunderstands the concept of freedom of association—because, as the Supreme Court held in Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) "freedom of association plainly presupposes a freedom not to associate." Under the First Amendment, groups like Truth cannot be forced by the government to accept members that do not agree with their mission; nor can they be penalized (here, by denial of recognition) for seeking to exclude those students who disagree with their core purpose.
But under the Ninth Circuit's flawed reading of the right to expressive association in Truth, this simple principle has been discarded. Under Truth, for example, College Democrat groups may no longer require that their members be Democrats. Nor may campus pro-life groups require that their members not volunteer for pro-choice groups. As we explain at length in our brief, this interpretation of the First Amendment is not only illogical, but it is also at odds with the rulings of both the Supreme Court and other federal circuits. That the Supreme Court ignored the plain tension between the existing jurisprudence and the Ninth Circuit's cramped understanding of the right to freedom of association does not bode well for civil liberties on campus.
Still more troubling is the fact that FIRE's concerns about Truth's impact on college campuses are not hypothetical. In fact, our brief pointed out that the Ninth Circuit's faulty decision in Truth has already been cited as controlling precedent in similar cases in the Ninth Circuit's jurisdiction involving collegiate, religious student groups. We wrote:
The Ninth Circuit's holding in Truth has already negatively impacted expressive association on college campuses. Despite the fact that Truth arose in the high school context, the Ninth Circuit subsequently applied its decision and reasoning to the university setting. See Christian Legal Society Chapter of University of California v. Kane, No. 06-15956 (9th Cir. Mar. 17, 2009).
In Kane, a religious student group at the University of California at Hastings Law School challenged the school's nondiscrimination policy, which required all student groups to "accept all comers as voting members even if those individuals disagree with the mission of the group." Kane, No. 06-15956. The student group was denied official recognition because it required all voting members and officers to agree to a Statement of Faith. In a one-paragraph opinion, the Ninth Circuit upheld the law school's nondiscrimination requirement as "viewpoint neutral and reasonable," citing Truth as controlling precedent. Id.
Anticipating Kane, a district court in the Ninth Circuit applied the Truth decision to other religious college student groups. Every Nation Campus Ministries v. Achtenberg, 2009 U.S. Dist. LEXIS 12251 (S.D. Cal. Feb. 6, 2009). Relying almost exclusively on Truth, the district court denied four religious groups at two California State University system schools the right to choose their members or leaders by reference to religious beliefs. Id. Repeating Truth's mistaken application of forum analysis, the district court held that "CSU may restrict access to its recognized student organization forum so long as the restrictions are viewpoint-neutral and reasonable in light of the purposes served." Id. at *48–49. Having determined that CSU's regulations were viewpoint-neutral and reasonable, following Truth, the court concluded that "CSU's nondiscrimination policy burdens Plaintiffs' expressive activity, if at all, only incidentally." Id. at *55.
Unfortunately, today's denial means that these erroneous rulings will stand—and that more such rulings and denials of recognition could very well follow.
For example, a federal lawsuit filed recently by the Christian Legal Society at the University of Montana School of Law against the school following the school's refusal to grant the group official recognition is headed to the Ninth Circuit on appeal. The appeal's only chance for success now is the empanelled judges diverging from their colleagues and refusing to apply Truth to colleges wholesale. That's precisely why clarity from the Supreme Court about how Truth does or does not conflict with the Seventh Circuit's ruling in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) (holding that Southern Illinois University's denial of recognition to the Christian Legal Society was likely an infringement of the group's First Amendment right to expressive association) would have been so helpful. The Court's silence means that Truth's negative impact on college campuses in the Ninth Circuit may fester for years.
By choosing not to correct the Ninth Circuit's flawed holding in Truth, the Supreme Court has failed to address the use of nondiscrimination policies to discriminate against religious student groups at high schools and colleges across the Ninth Circuit. As such, today's Supreme Court holding is deeply disappointing to FIRE and citizens across the country who recognize that "[h]igh school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn—excluding people who will not pledge allegiance to official views," as noted civil libertarian and FIRE Board of Advisors member Wendy Kaminer put it last week in a blog entry for The Atlantic. Nevertheless, while we strongly disagree with the Court's decision not to hear Truth's appeal, FIRE's efforts on behalf of religious liberty and freedom of association on campus will continue unabated.
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